Bringham v. Commissioner of Social Security Administration

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF OKLAHOMA

BRON B., )

)

Plaintiff, )

)

v. ) Case No. CIV-24-1046-R

)

FRANK BISIGNANO,1 )

Commissioner, )

Social Security Administration, )

)

Defendant. )

REPORT AND RECOMMENDATION

Plaintiff Bron B. seeks judicial review of the denial by the Social Security

Administration (“SSA”) of his application for supplemental security income. United States

District Judge David L. Russell referred this matter to the undersigned Magistrate Judge

for proposed findings and recommendations consistent with 28 U.S.C. §§ 636(b)(1)(B) and

636(b)(3), and Federal Rule of Civil Procedure 72(b). The Commissioner has filed the

administrative record (“AR”), Doc. 6, and both parties have briefed their positions, Docs. 9,

17, 18.2 For the following reasons, the undersigned recommends that the Court reverse

and remand the Commissioner’s decision for further administrative proceedings.

1 Frank Bisignano is substituted as the proper party defendant pursuant to Federal Rule of

Civil Procedure 25(d).

2 Citations to the parties’ briefs reference the Court’s ECF pagination. Citations to the AR

reference the document’s original pagination.

I. Procedural Background

Initially and on reconsideration, the SSA denied Plaintiff’s application for benefits.

On September 20, 2022, an administrative law judge (“ALJ”) issued a decision finding that

Plaintiff was not disabled within the meaning of the Social Security Act. AR 17-23. The

Appeals Council denied Plaintiff’s request for review. AR 1-6. Thereafter, Plaintiff

appealed to this Court, which reversed the Commissioner’s decision and remanded for

further administrative proceedings. AR 641-42. Pursuant to that order, the Appeals

Council remanded the case to a different ALJ for further proceedings and a new decision.

AR 644-50.

On August 2, 2024, a second ALJ issued a decision finding that Plaintiff was not

disabled within the meaning of the Social Security Act. AR 578-97. As Plaintiff did not

file exceptions to the hearing decision, the Appeals Council did not assume jurisdiction

and the ALJ’s decision became the Commissioner’s final decision. See 20 C.F.R.

§ 416.1484(d).

II. The ALJ’s Decision

The ALJ followed the five-step sequential evaluation process required by agency

regulations. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (explaining the five-

step process); see also 20 C.F.R. § 416.920 (same). The ALJ first determined that Plaintiff

had not engaged in substantial gainful activity since the application date. AR 581. At step

two, the ALJ determined that Plaintiff had the severe impairments of degenerative disc

disease of the lumbar spine, to include osteomyelitis, discitis, and Pott disease. Id. At step

three, the ALJ found Plaintiff’s impairments do not meet or medically equal any of the

impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1. Id.

At step four, the ALJ found that Plaintiff had the residual functional capacity

(“RFC”) to perform work at the light exertional level, as defined in 20 C.F.R. § 416.967(b),

with additional exertional and nonexertional limitations. AR 581-88. The ALJ then found

that Plaintiff is unable to perform any past relevant work. AR 588-89.

Relying at the final step on the vocational expert’s testimony, the ALJ found

Plaintiff can perform other work existing in significant numbers in the national economy.

AR 589-90. Therefore, the ALJ concluded that Plaintiff has not been under a disability,

for purposes of the Social Security Act, since the application date. AR 590.

III. Standard of Review

Judicial review of the Commissioner’s final decision is limited to determining

whether the factual findings are supported by substantial evidence in the record and

whether the correct legal standards were applied. Noreja v. Comm’r, SSA, 952 F.3d 1172,

1177 (10th Cir. 2020). Under such review, “common sense, not technical perfection, is

[the Court’s] guide.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1167 (10th Cir. 2012).

In reviewing the agency’s factual findings, the Court will “neither reweigh the

evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805 F.3d

1199, 1201 (10th Cir. 2015) (citation modified). Instead, the Court “looks to an existing

administrative record and asks whether it contains sufficient evidence to support the

agency’s factual determinations.” Biestek v. Berryhill, 587 U.S. 97, 102 (2019) (citation

modified). Substantial evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Id. at 103 (citation modified). “It requires

more than a scintilla, but less than a preponderance.” Lax v. Astrue, 489 F.3d 1080, 1084

(10th Cir. 2007). “Evidence is not substantial if it is overwhelmed by other evidence in the

record or constitutes mere conclusion.” Noreja, 952 F.3d at 1178 (citation modified). In

addition to a lack of substantial evidence, “the agency’s failure to apply the correct legal

standards, or show [the Court] that it has done so, is also grounds for reversal.” Hamlin v.

Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004).

IV. Analysis

On January 5, 2021, Plaintiff had emergency surgery including a T4 to T11

laminectomy and T4 to L1 instrumented posterior spinal fusion. AR 408-10. Plaintiff

alleges disability based primarily on back pain, lack of spinal mobility, and resulting

functional limitations. AR 262. He claims disability began on January 4, 2021. AR 259.

A. Subjective symptom evaluation

1. Appeals Council’s remand instructions

In its order of remand, the Appeals Council instructed the second ALJ to reconsider

Plaintiff’s RFC as well as “further evaluate [Plaintiff’s] alleged symptoms, particularly

with respect [to] his reported inability to stand, walk, or sit for extended periods, and

provide rationale in accordance with the disability regulations pertaining to evaluation of

symptoms.” AR 647 (citation modified). In discussing the first ALJ’s decision, the

Appeals Council observed that Plaintiff “has repeatedly alleged in function reports, and

testified extensively to, an inability to stand, walk, or sit for more than 20-25 minutes at a

time,” while the “only evidence that the claimant could stand and/or walk for 6 hours a day

came from the state agency medical consultants.” AR 646 (citing AR 20; 43-45; 46-48;

273; 282; 300; 310; 318; 322; 325). The Appeals Council also discussed certain medical

records the first ALJ relied on, but found such reliance unwarranted as the records did “not

contradict the claimant’s reported difficulty standing, walking, or sitting for extended

periods.” AR 646-47. The Appeals Council instructed that on remand “further

consideration of the claimant’s reported symptoms is required.” AR 647. The second ALJ

did not adequately follow those instructions.

The second ALJ found that Plaintiff had the RFC to “perform light work as defined

in 20 CFR 416.967(b) except sit, stand and/or walk for 6 hours in an 8-hour workday;

occasionally climb ramps and stairs, balance, stoop, kneel and crouch. No climbing ropes,

ladders, scaffolding or unprotected heights.” AR 581. However, as noted by the Appeals

Council, Plaintiff has repeatedly alleged spinal symptoms that resulted in an inability to

stand, walk, or sit for more than 20-25 minutes at a time. On remand, the record includes

even more allegations of such symptoms and inabilities, including Plaintiff’s hearing

testimony as summarized by the ALJ:

He was diagnosed with POTTS disease, that affects his back and is painful

to where he can only stand, up and down for 10-15 minutes at a time. He

had surgery in 2021 and had a nine-level fusion in the lumbar spine. He has

had problems ever since then. He has constant pain in the back that goes

down into both legs. He has pain and numbness in both legs. He can bend

about 20 degrees. He uses a grabber to pick things up. His legs have gone

out on him, and he has to use a cane when he gets out of bed and when he

walks. It is worse now than at the previous hearing. He uses the cane about

50 percent of the time. His legs just get really weak, and it makes him walk

“kind of funny.” He feels like he is going to fall over. He gets about 2 hours

of sleep per night, often getting out of bed every 10-15 minutes. He can walk

about half a block.

AR 582-83; see also Plaintiff’s testimony at June 18, 2024, hearing, AR 603 (“I get pain

down my left leg and it’s affecting my knee. I can’t stand for more than—I’m up and down

10 or 15 minutes at a time.”); 604 (he has constant pain in his low back with pain and

numbness that goes down both his legs); 605 (“Well, if I’m up for too long or if I walk too

far, my legs will go out on me.”); 605 (his symptoms and limitations are worse than at the

previous hearing); 606-07 (he can sit for about 10-15 minutes before needing to stand up;

he can stand for about 10-15 minutes before needing to sit or lie down; he needs to lie down

for about 15 minutes before he can sit or stand again); 607 (he can walk about half a block

before needing a break and must change positions continually throughout the day).

2. Standards for evaluating symptoms

Under Social Security Ruling 16-3p, an ALJ is directed to determine the consistency

of a claimant’s statements regarding the intensity, persistence, and limiting effects of the

claimant’s symptoms as compared to other evidence in the record. SSR 16-3p, 2017 WL

5180304, at *4-10. In considering a claimant’s complaints of subjective pain or other

symptoms, an ALJ is required to consider all the relevant objective and subjective evidence

and “decide whether he believes the claimant’s assertions of severe pain.” Luna v. Bowen,

834 F.2d 161, 163 (10th Cir. 1987). In doing so, the ALJ must consider and determine:

(1) whether the claimant established a pain-producing impairment by

objective medical evidence; (2) if so, whether the impairment is reasonably

expected to produce some pain of the sort alleged . . .; and (3) if so, whether,

considering all the evidence, both objective and subjective, the claimant’s

pain was in fact disabling.

Brownrigg v. Berryhill, 688 F. App’x 542, 545 (10th Cir. 2017) (quoting Keyes-Zachary

v. Astrue, 695 F.3d 1156, 1166-67 (10th Cir. 2012)). As part of this analysis, the ALJ

should consider the following factors:

i. Daily activities;

ii. The location, duration, frequency, and intensity of pain or other

symptoms;

iii. Precipitating and aggravating factors;

iv. The type, dosage, effectiveness, and side effects of any medication an

individual takes or has taken to alleviate pain or other symptoms;

v. Treatment, other than medication, an individual receives or has

received for relief of pain or other symptoms;

vi. Any measures other than treatment an individual uses or has used to

relieve pain or other symptoms (e.g., lying flat on back, standing for

15 to 20 minutes every hour, sleeping on a board, etc.); and

vii. Other factors concerning an individual’s functional limitations and

restrictions due to pain or other symptoms.

20 C.F.R. § 416.929(c)(3)(i)-(vii); SSR 16-3p, 2017 WL 5180304, at *7-8; accord

Brownrigg, 688 F. App’x at 545-46 (noting that the factors to consider in the Luna analysis

are “similar” to those listed in Social Security Ruling 16-3p); see also AR 647 (Appeals

Council remand instructions that the ALJ should evaluate Plaintiff’s alleged symptoms and

provide rational in accordance with 20 C.F.R. § 416.929).

Here, the ALJ summarized Plaintiff’s testimony regarding his symptoms and their

limiting effects, as well as his daily activities. AR 582-83. The ALJ then found that

Plaintiff’s “statements about the intensity, persistence, and limiting effects of his

symptoms” were “inconsistent” with (1) Plaintiff’s daily activities and (2) the objective

medical evidence. AR 583. The undersigned finds that substantial evidence does not

support the ALJ’s determinations regarding such inconsistencies.

3. ALJ’s consideration of daily activities

Plaintiff challenges the ALJ’s reliance on his daily activities. Pl.’s Br. at 24-25. In

discussing Plaintiff’s subjective complaints, the ALJ found that Plaintiff “has described

daily activities that are not limited to the extent one would expect, given the complaints of

disabling symptoms and limitations.” AR 583. The ALJ then cited the following

testimony:

The claimant testified that for daily activities, he gets up and gets breakfast,

then goes and [lies] down for a while. He gets up and walks around. He is

up and down all day long. He lives with his parents. His mom helps him by

getting the groceries, doing all of the cooking, laundry, and does just about

everything. He can go out to eat with his mom and sometimes goes to the

store with her. He watches television during the day.

Id.; see also Plaintiff’s testimony at June 18, 2024, hearing, AR 607 (“When I get up, I’ll

get breakfast and my mom usually helps me make breakfast and then I’ll walk around for

about ten minutes and then I’ll go [lie] back down and watch TV for about 10/15 minutes

and then get back up. Up and down, up and down.”); 608 (he doesn’t do any activities

including cleaning, shopping, or yard work).

It is unclear how such minimal daily activities, combined with the need to

continually change positions throughout the day, are inconsistent with Plaintiff’s

statements regarding his symptoms and their limiting effects. See Huston v. Bowen, 838

F.2d 1125, 1132 (10th Cir. 1988) (noting that “in determining the credibility of pain

testimony” the ALJ may consider “the nature of [claimant’s] daily activities”); Frey v.

Bowen, 816 F.2d 508, 516 (10th Cir. 1987) (“Nor does the ALJ’s citation of ‘daily

activities’ indicate substantial evidence refuting [claimant’s] complaint of disabling pain

or its credibility.”). Accordingly, the ALJ’s determination that Plaintiff’s daily activities

are inconsistent with his statements regarding the intensity, persistence, and limiting effects

of his symptoms is not supported by substantial evidence. See Frey, 816 F.2d at 517 (“In

the present case, any reliance on [claimant’s] ‘daily activities’ to undercut his allegation of

pain is misplaced. [Claimant] testified that he cannot sit, stand, walk, or drive a car for

more than a brief interval, that he does no yard work and only minor house chores, mostly

to care for himself. This lifestyle does not contradict a claim of disabling pain.”).

4. ALJ’s consideration of objective medical evidence

Plaintiff additionally challenges the ALJ’s reliance on the medical evidence. Pl.’s

Br. at 20-24. In considering the intensity, persistence, and limiting effect of Plaintiff’s

symptoms, the ALJ also reviewed the objective medical evidence and whether Plaintiff’s

statements regarding his symptoms were consistent with such evidence. AR 583-88; see

SSR 16-3p, 2017 WL 5180304, at *5 (“We must consider whether an individual’s

statements about the intensity, persistence, and limiting effects of his or her symptoms are

consistent with the medical signs and laboratory findings of record.”). However, as the

Appeals Council found with respect to the first ALJ decision, the second ALJ also relied

on medical evidence that is not inconsistent with Plaintiff’s complaints of subjective

symptoms and limitations. See AR 647 (finding the first ALJ relied on medical records

that do not “contradict” Plaintiff’s reported difficulty standing, walking, or sitting for

extended periods).

a. Post-surgical follow-up appointments

In reviewing Plaintiff’s medical records, the ALJ first considered records from

Plaintiff’s post-surgical follow-up appointments. AR 584-86. These included the March 2,

2021, clinic notes from Plaintiff’s appointment to transition care to the Osler Clinic from

OU Medical Center inpatient, at which time Plaintiff “ambulated with a slowed and

unsteady gate and range of motion was decreased in the back.” AR 584 (citing AR 439).

Clinic notes from Plaintiff’s first post-operative follow-up appointment with his

surgeon at the OU Medical Center on March 31, 2021, indicate that Plaintiff “stated that

overall he was walking normally” and “still had some coordination issues but was overall

doing very well.” AR 585 (citing AR 454). As Plaintiff explained at the hearing, he was

unable to walk prior to his surgery. AR 603-04. This statement, then, is similar to

Plaintiff’s statement made nine months after surgery that he was “‘doing well’ overall.”

AR 647 (quoting AR 21). With respect to that statement, the Appeals Council noted

Plaintiff had explained that he felt that way because, prior to surgery, he was unsure if he

would be able to walk again. AR 647 (citing AR 43-44). Accordingly, the Appeals Council

found the statement did not contradict Plaintiff’s statements of symptoms and resulting

limitations. AR 647. Likewise, Plaintiff’s observation that he was walking normally at his

first post-surgery follow-up does not contradict Plaintiff’s reported difficulty standing,

walking, or sitting.3

3 The ALJ additionally noted a March 31, 2021, function report showing Plaintiff “was

unable to return to work” as he “required further rehabilitation and physical therapy.”

AR 585 (citing AR 522).

The ALJ next considered Plaintiff’s September 1, 2021, six-month follow-up with

the OU Medical Center in which x-rays revealed “persistent erosive changes within the

vertebral bodies.” AR 585 (citing AR 551). Appointment notes indicate Plaintiff was

“progressing well” and “able to return to regular activity as tolerated [but] was told to be

mindful of excessive bending, twisting, squatting or weightlifting.” AR 585 (citing

AR 552). This treatment note indicates that, while Plaintiff was progressing well, his return

to regular activity was to be limited by his ability to tolerate pain and symptoms. As such,

to the extent the ALJ relied on this medical record to find an inconsistency between the

objective medical record and Plaintiff’s reported symptoms and limitations, the

undersigned finds no inconsistency.

On March 16, 2022, Plaintiff reported for a surgical follow-up and reported “trouble

sitting, standing, picking up.” AR 548. Plaintiff asserted a pain level of 4 out of 10, and

that he experienced the pain “constantly (all the time).” AR 548. With respect to this

appointment, the ALJ discussed only Plaintiff’s x-rays. AR 586 (citing AR 544).

b. Physical therapy appointments

From April 22, 2022, through May 24, 2022, Plaintiff participated in physical

therapy for “decreased strength, flexibility, and range of motion.” AR 586 (citing AR 568).

Plaintiff reported limitations in independent activities of daily living, work, and sports, plus

a desire to “increase his mobility and reduce pain as well as increase stan[]ding endurance.”

AR 558, 568, 572.

As to the April 22, 2022, physical therapy record, the ALJ discussed that Plaintiff

was noted as “exhibiting good bilateral equal trunk rotation on examination.” AR 586

(citing AR 568). However, this is incorrect as the notations regarding “Range of Motion

Assessment Label” for “Bilateral Trunk” indicate only that the extremities were not within

functional parameters as Plaintiff “has reduced thora[c]ic mobility that is typical for s/p

fusion.” AR 569. The ALJ also stated that Plaintiff reported he was experiencing pain at

an intensity level of 4 out of 10. AR 586 (citing AR 568). However, this is also incorrect

as Plaintiff reported pain as a 5 out of 10. AR 568-69. The undersigned therefore finds

the ALJ’s discussion of the April 22, 2022, physical therapy notes to be inaccurate. As

such, to the extent the ALJ relied on this medical record to find an inconsistency between

the objective medical record and Plaintiff’s reported symptoms and limitations, the

undersigned finds such reliance is unsupported by substantial evidence. See Lax v. Astrue,

489 F.3d 1080, 1089 (10th Cir. 2007) (finding an ALJ’s determination unsupported by

substantial evidence when such determination was based on an inaccurate description of

the medical record); see also Sitsler v. Astrue, 410 F. App’x 112, 118 (10th Cir. 2011)

(reversing and remanding when an ALJ’s analysis of plaintiff’s symptoms was “flawed”

due in part to “his reliance on mischaracterizations of the evidence”).

With respect to the May 17, 2022, physical therapy record, the ALJ stated that

Plaintiff “had improvement in symptom tolerance and management, as well as decreased

pain associated with movement to return to work without restrictions or limitations.”

AR 586 (citing AR 560). The ALJ’s discussion of the May 17, 2022, physical therapy

notes is also inaccurate. The ALJ’s description is taken from the “Long Term Goals”

section of the treatment note and does not reflect Plaintiff’s statements or the physical

therapist’s assessment or clinical impressions. Compare AR 586, with AR 560-61. Again,

to the extent the ALJ relied on this medical record to find an inconsistency between the

objective medical record and Plaintiff’s reported symptoms and limitations, the

undersigned finds such reliance is unsupported by substantial evidence. See Lax, 489 F.3d

at 1089; Sitsler, 410 F. App’x at 118.

Further, it appears the ALJ mistakenly attributed records from the May 17, 2022,

appointment to the wrong date in stating: “A week later [than May 24, 2022], [Plaintiff’s]

pain symptoms were noted to have lowered down to a three out of ten and he was noted as

reporting that he had regained strength and was noted as developing greater flexibility.”

Compare AR 586 (citing AR 561), with AR 561. At the May 17th appointment, Plaintiff

“reported he feels he is regaining his strength and is becoming more flexible with his

extremities and gentle rotation of trunk.” AR 561. Plaintiff also reported his pain intensity

as 4 and 5 on a 0-to-10 pain scale, but “stated at his best[,] his pain get[s] to a 3 of 10 when

relaxed.” AR 560. While the ALJ’s statement that Plaintiff’s “pain symptoms were noted

to have lowered down to a three out of ten” is accurate, it ignores the notations that Plaintiff

stated this happens only “at best” when he is “relaxed” and his pain intensity is generally

a 5 or 4. AR 560. As such, to the extent the ALJ relied on this medical record to find an

inconsistency between the objective medical record and Plaintiff’s reported symptoms and

limitations, the undersigned finds such reliance is unsupported by substantial evidence.

See Noreja, 952 F.3d at 1178 (“Evidence is not substantial if it is overwhelmed by other

evidence in the record or constitutes mere conclusion.” (citation modified)).

Finally, with respect to the May 24, 2022, physical therapy record, the ALJ stated

that Plaintiff “reported that he was moving better and was working on home exercise

program to regain good functional movement within his limits. He stated the exercises had

helped and he was slowly having less pain. There was increased perceived functional level

with reduction of pain. His providers’ goal was to lower these pain symptoms to a two out

of ten.” AR 586 (citing AR 558). In addition, Plaintiff “was noted as attending physical

therapy and lifting thirty-five-pound weights from the floor with two reps and was noted

as doing so with good technique and with pain symptoms no greater than two to three in

intensity out of ten: with ten being the most intense pain imaginable.” AR 586 (citing

AR 559) (citation modified).4

The ALJ’s discussion of this medical record is incomplete. The undersigned’s

review finds that Plaintiff was discharged from physical therapy having made progress on

his goals of pain management such that he obtained “reduced but not abolished pain in

back.” AR 559. While Plaintiff met some long term goals, he notably did not meet the

referenced long term goal of “rat[ing] pain as no greater than 2/10, 75% of the time to

indicate improvement in [symptom] tolerance and management and decrease pain

associated with movement to return to work and [prior level of functioning] without

restrictions or limitations.” AR 559. Plaintiff did state that the exercises had helped and

“he is slowly having less pain. However[,] he reports the pain rarely gets below 3 of 10,

but has improved from being 5-6 of 10 regularly.” AR 558. The medical record

4 Plaintiff was discharged from physical therapy on May 24, 2022. Accordingly, the ALJ’s

reference to a medical record dated May 25, 2022, appears to be a scrivener’s error in which

the intended date was May 24, 2022. Compare AR 586, with AR 558-59.

additionally notes that Plaintiff “reports pain at best is usually 3 of 10[,] which is significant

in that it had for some time been 5 of 10 at best.” AR 559.

According to the May 24, 2022, physical therapy record, Plaintiff also did not meet

the short term goal of self-reporting improvement on the Oswestry Disability Score Index

to achieve a score of less than or equal to 5/50, which would indicate a 10% disability

related to Plaintiff’s back and “improvement with lumbar [symptoms] including pain and

decreased tolerance to functional mobility and [activities of daily living] to return to [prior

level of functioning] and normal home and community participation.” AR 559. Plaintiff

self-reported a score of 17/50, down from an initial 27/50, which indicates “increased

perceived functional level with reduction of pain.” AR 558.

Thus, Plaintiff showed improvement. However, such improvement did not rise to

the level the ALJ intimated with his statement that, while doing two reps of lifting weights,

Plaintiff was noted “with pain symptoms no greater than two to three in intensity out of

ten: with ten being the most intense pain imaginable.” AR 586. Instead, it appears the

source of that statement was the notation that Plaintiff did the reps “without increased

pain.” AR 559. Given that Plaintiff reported his pain as “at best” 3 out of 10, with no

explanation of the length or frequency of this “best” pain level, the record does not support

the ALJ’s statement that, when lifting a weight during therapy, Plaintiff’s pain was “no

greater than two or three.” See also AR 560 (“[Plaintiff] stated at best his pain get[s] to a

3 of 10 when relaxed.”). As such, nothing in these physical therapy notes demonstrates

inconsistency with Plaintiff’s complaints of subjective symptoms and limitations.

Accordingly, to the extent the ALJ relied on this medical record to find an inconsistency

between the objective medical evidence and Plaintiff’s reported symptoms and limitations,

the undersigned finds such reliance is unsupported by substantial evidence. See Noreja,

952 F.3d at 1178 (“Evidence is not substantial if it is overwhelmed by other evidence in

the record or constitutes mere conclusion.” (citation modified)).

c. Additional appointments

i. JT Health Clinic

Finally, the ALJ discussed various additional medical records. On October 7, 2022,

Plaintiff presented to establish care with JT Health Clinic, complaining of pain in his

elbow. AR 586 (citing AR 871). Plaintiff appears to have reported for treatment

approximately monthly from October of 2022 through July of 2023 to JT Health Clinic.

AR 793-876. After his initial visit on October 7, 2022, through February 28, 2023, Plaintiff

was treated primarily for testicular hypofunction. AR 825-76. Beginning with his

March 27, 2023, appointment and continuing through his July 26, 2023, appointment,

however, Plaintiff consistently complained of low back pain. AR 793-824.

With respect to Plaintiff’s subjective complaints of back-related pain, the ALJ noted

that, at his April 27, 2023, appointment with JT Health Clinic, Plaintiff “wanted to talk

about his back pain as it was disturbing his sleep cycle so much that it concerned him for

constant fatigue syndrome.” AR 587 (citing AR 812). Plaintiff “said pain in the back was

chronic and moderate in intensity, secondary to multiple level thoracic fusion status post

infection and sepsis. He was stable and had been for a while but still struggles daily with

rest, chronic pain and insomnia issues due to sleep pattern disturbances.” AR 587 (citing

AR 813). On May 23, 2023, Plaintiff also reported back pain, with the ALJ noting he

“stated that his back pain was still an[] evening issue with being able to rest without having

to toss and readjust.” AR 587 (citing AR 801); AR 799. At that appointment, Plaintiff told

his treatment provider that he got very little sleep due to discomfort, as he had to change

positions or get up and walk around every 15-20 minutes. AR 799. As noted by the ALJ,

Plaintiff also reported back pain on June 19, 2023. AR 587 (citing AR 797). Additionally,

though not mentioned by the ALJ, Plaintiff reported back pain on March 27, 2023, and

July 26, 2023. AR 819, 793. Given Plaintiff’s consistent complaints of back pain—and

the ALJ’s discussion of such complaints—the undersigned cannot discern how these

medical records could provide substantial evidence for the ALJ’s determination that there

were inconsistencies between Plaintiff’s complaints of subjective pain and limitations and

the objective medical evidence.

ii. Xpress Wellness Urgent Care

On March 22, 2024, Plaintiff presented to Xpress Wellness Urgent Care for a refill

on his blood pressure medication. AR 886-88. The ALJ discussed that the treatment record

indicates all aspects of Plaintiff’s physical exam were normal, including normal gait and

posture, as well as no tenderness, deformity or lesion bilaterally in the upper or lower

extremities. AR 587 (citing AR 886-87). The only diagnosis at this appointment related

to Plaintiff’s hypertension; it does not appear that Plaintiff sought treatment or was assessed

for back pain. AR 886-88.

On May 17, 2024, Plaintiff presented to Xpress Wellness Urgent Care for

complaints related to his blood pressure and listed musculoskeletal aches and pains among

his recent symptoms. AR 883. The ALJ observed that Plaintiff noted he had “chronic

pain” as well as “chronic insomnia due to the inability to get pain relief to sleep more than

20-minute increments throughout the night.” AR 587-88 (citing AR 883). The ALJ

discussed that the treatment record indicates that Plaintiff’s physical exam showed a

reduced range of motion of the back as well as weakness of lower extremities. AR 588

(citing AR 884). The ALJ noted that, in addition to a diagnosis related to Plaintiff’s

hypertension, this medical record also included diagnoses of “pain in thoracic spine” and

“insomnia due to medical condition.” AR 588 (citing AR 884). Additionally, though not

included in the ALJ’s discussion, this medical record concluded with the following

instructions by the treatment provider regarding Plaintiff’s back pain:

• Continue chronic back pain ongoing self therapy and follow up with

spine physician as directed. Including ongoing restrictions of activity

given after extensive surgical procedures.

• Restrictions of lifting no more than 20 [pounds] at home and no

repetitive bending or twisting motions.

• Rest but change positions while resting every 30-60 minutes.

AR 885.

Because the treatment provider gave Plaintiff instructions regarding management of

his back pain—including instructions to rest and frequently change positions, which would

limit Plaintiff’s ability to stand, walk, or sit for long periods—the ALJ’s failure to discuss

the instructions was error. See Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996)

(holding that an ALJ must discuss “significantly probative evidence” that he rejects).

Additionally, because the medical record reflects Plaintiff’s continued complaints of back

pain, as well as reduced range of motion of the back and weakness of lower extremities, it

supports Plaintiff’s statements regarding the intensity, persistence, and limiting effects of

his symptoms. As such, to the extent the ALJ relied on this medical record to find an

inconsistency between the objective medical record and Plaintiff’s reported symptoms and

limitations, the undersigned finds such reliance is unsupported by substantial evidence.

See Noreja, 952 F.3d at 1178 (“Evidence is not substantial if it is overwhelmed by other

evidence in the record or constitutes mere conclusion.” (citation modified))

There are no additional medical records in the administrative record.

d. Conclusion

The undersigned is mindful that determinations regarding a claimant’s statements

of subjective symptoms “are peculiarly the province of the finder of fact” and a court may

not “upset such determinations when supported by substantial evidence.” Kepler v. Chater,

68 F.3d 387, 391 (10th Cir. 1995) (citation modified). However, here the undersigned

finds (1) a lack of inconsistency between the various medical records discussed by the ALJ

and Plaintiff’s complaints of subjective pain and associated limitations and (2) inaccuracies

in the ALJ’s descriptions of some of those records. Accordingly, the medical records the

ALJ relied on to reach his determination of inconsistency do not provide substantial

evidence for that determination. And “a decision not supported by substantial evidence

must be reversed.” Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (citation

modified).

Additionally, the ALJ’s analysis supporting his credibility determination was

lacking. Though the ALJ provided a detailed summary of Plaintiff’s medical records,

AR 583-88, he failed to provide adequate explanation for his determinations that “there are

inconsistencies regarding [Plaintiff’s] limitations and the objective medical evidence,”

AR 583, or that “the evidence as a whole simply does not support the extreme allegations

as to functional limitations,” AR 588. Instead, he “simply recited evidence from the record

and did not provide any insight into how that evidence had impacted [his] determination

of Plaintiff’s allegations.” Copelin v. Saul, No. CIV-18-1157-STE, 2019 WL 3082472, at

*6 (W.D. Okla. July 15, 2019). An ALJ’s findings “should be closely and affirmatively

linked to substantial evidence and not just a conclusion in the guise of findings.” Kepler,

68 F.3d at 391 (citation modified); see also SSR 16-3p, 2017 WL 5180304, at *10 (“The

determination or decision [regarding evaluation of symptoms] must contain specific

reasons for the weight given to the individual’s symptoms, be consistent with and

supported by the evidence, and be clearly articulated so the individual and any subsequent

reviewer can assess how the adjudicator evaluated the individual’s symptoms.”).

Conclusory statements are insufficient to support the ALJ’s determination. See Brownrigg

v. Berryhill, 688 F. App’x 542, 546 (10th Cir. 2017) (“Because the ALJ did not . . .

sufficiently articulate his reasoning, [the court] cannot conduct a meaningful review of the

pain assessment.”); Wilson v. Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010) (explaining

that the ALJ is required to closely and affirmatively link findings regarding a claimant’s

statements to substantial evidence in the record and to “articulate specific reasons” for such

findings).

Because the ALJ failed to provide adequate explanation as to how he arrived at his

determination of inconsistency, “remand of this matter is appropriate for an ALJ to make

express findings regarding Plaintiff’s subjective allegations in accordance with his duties

under SSR 16-3p.” Maurice D. H. v. O’Malley, No. 22-CV-530-MTS, 2024 WL 51022,

at *5 (N.D. Okla. Jan. 4, 2024); accord, e.g., Sanders v. King, No. CIV-24-508-STE, 2025

WL 365650, at *4 (W.D. Okla. Jan. 31, 2025) (reversing and remanding when the ALJ

made conclusory findings under SSR 16-3p); Hager v. Kijakazi, No. CIV-23-18-AMG,

2023 WL 6849065, at *4 (W.D. Okla. Oct. 17, 2023) (same); Copelin, 2019 WL 3082472,

at *6 (same).

5. Conclusion

The undersigned concludes that substantial evidence does not support the ALJ’s

determinations that Plaintiff’s statements about the intensity, persistence, and limiting

effects of his symptoms were inconsistent with (1) Plaintiff’s daily activities and (2) the

objective medical evidence. As such, the undersigned finds the ALJ did not adequately

follow the instructions of the Appeals Council on remand to “further evaluate [Plaintiff’s]

alleged symptoms, particularly with respect [to] his reported inability to stand, walk, or sit

for extended periods, and provide rationale in accordance with the disability regulations

pertaining to evaluation of symptoms.” AR 647. “When the Appeals Council remands a

case with instructions, those instructions become legal requirements with which the ALJ is

bound to comply.” Noreja, 952 F.3d at 1179 (citation modified); see also 20 C.F.R.

§ 416.1477(b) (“The administrative law judge shall take any action that is ordered by the

Appeals Council.”). A federal court should consider whether the ALJ complied with a

remand order from the Council, and an ALJ’s failure to comply can be reversible error.

Noreja, 952 F.3d at 1178; Hale v. Astrue, No. CIV-10-1377-L, 2012 WL 3542201, at *2-

3, *7 (W.D. Okla. July 24, 2012) (finding that the ALJ erred by, among other things,

“failing to comply with instructions by the Appeals Council” and that the errors “require[d]

reversal”) (R&R), adopted, 2012 WL 3542198 (W.D. Okla. Aug. 16, 2012); see also

Lofthouse v. Kijakazi, No. 2:21-CV-00178-CMR, 2023 WL 4409217, at *4 (D. Utah

July 7, 2023) (reversing when, inter alia, it was “unclear” if the ALJ followed the Appeals

Council’s remand instructions). Here, reversal is required.

B. Plaintiff’s Remaining Claims of Error

Because the above issue warrants remand, the undersigned does not address

Plaintiff’s other claims of error. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir.

2003) (“We will not reach the remaining issues raised by appellant because they may be

affected by the ALJ’s treatment of this case on remand.”).

V. Recommendation and Notice of Right to Object

For the foregoing reasons, the undersigned recommends the Court REVERSE and

REMAND the Commissioner’s decision for further administrative proceedings.

The parties are advised of their right to object to this Report and Recommendation.

See 28 U.S.C. § 636. Any objection must be filed with the Clerk of Court not later than

August 12, 2025. See id. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to object timely

waives the right to appellate review of the factual and legal issues addressed in this Report

and Recommendation. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).

This Report and Recommendation disposes of all issues referred to the undersigned

Magistrate Judge in this matter.

ENTERED this 29" day of July, 2025.

CHRIS M. STEPHENS

UNITED STATES MAGISTRATE JUDGE

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